Navigating special education disputes in schools

Navigating special education disputes in schools

Attorneys advise how parents and schools districts can work together to serve students
About 1 in 6 students are now diagnosed with a developmental disability, according to a 2011 study in the journal Pediatrics.

Relationships between school districts and the parents of special needs students are notoriously adversarial, and lawyers sometimes get involved in the disputes that arise. Given the increase in students diagnosed with disabilities and the costs involved in serving them, district leaders who want to provide the proper instruction and care, and avoid costly litigation, must stay abreast of the law.

About 1 in 6 students are now diagnosed with a developmental disability, according to a 2011 study in the journal Pediatrics—a 17 percent increase between 1997 and 2008. And prevalence of autism increased nearly 290 percent during that time, the study found.

Parents sometimes take districts to court, alleging that the school is not providing the proper services for their child under the Individuals with Disabilities Education Act (IDEA). Conflict often arises over implementing a student’s individualized education program (IEP), which defines the learning objectives for a child with disabilities, says Julie Weatherly, a founder of the Weatherly Law Firm in Atlanta, which works with school districts on special education compliance.

“Parents want the best of the best, and expect that the child will maximize his or her potential in school,” Weatherly says. “But sometimes, the expectations on the part of litigious parents are beyond what the law would require.”

Less money, fewer resources?

IDEA guarantees a free and appropriate public school education for children with special needs, and mandates that these students receive specially-designed instruction and related services. With the increase in students diagnosed with disabilities, districts must spend more money to provide services such as occupational therapy and speech language pathology—a difficult task with reduced staff and budget cuts.

“We’ve hired another attorney in my practice because more parents are contacting us, I think, because of budget issues,” says Wayne Steedman, partner and president of Callegary & Steedman law firm in Baltimore, which represents children with disabilities. “The sequester has impacted school budgets, so more and more districts are either trying to cut or deny services or refuse to identify a child with disabilities.”

When parents disagree with schools, they can file for a due process hearing—a court procedure where a hearing officer decides, based on the law, how to deal with the issue being disputed. The number of special education due process hearing requests continues to increase in the five most populous U.S. states, according to an April report from the School Superintendents Association.

An analysis by the Center for Appropriate Dispute Resolution (CADRE) found that during the 2005-2006 school year, over 19,000 due process hearings were requested, and nearly 5,400 went to a fully adjudicated hearing, compared to only 1,574 adjudicated hearings in 1992, according to the National Association of State Directors of Special Education.

Districts nationwide spend over $90 million per year in conflict resolution, and most of that money is spent on special education cases. However, there is no evidence that students who go through court proceedings perform better academically after the costly hearings, the report found.

Having a facilitator involved in developing IEPs for students with disabilities is one way the School Superintendents Association proposes reducing special education litigation. A facilitator could help settle any disagreements that may arise between parents and school officials. Due process complaints have declined nationally since 2005 as districts increasingly use approaches such as facilitated IEP meetings to solve problems that arise, CADRE found.

Laws get more specific

In some areas, laws are changing to make the role of districts and parents of special needs students more clear. A Florida law passed in June reaffirms the rights of parents, stating that schools cannot discourage them from bringing another adult of their choice to IEP meetings, such as a private physical therapist or psychologist. The law also requires parents’ consent before a student is placed on a special diploma track or educated at a separate day school for children with disabilities. Schools must also give parents information about the benefits and consequences of these decisions.

And a new law passed in New Jersey in August requires dyslexia to be incorporated into special education. Students with dyslexia were previously identified only as having a learning disability, and parents and advocates say that they did not get the specific programs they needed to help them learn to read. Gov. Chris Christie also signed another bill requiring all teachers to receive annual training in reading disabilities.

But the IDEA and other federal special education laws and regulations are unlikely to change significantly until Congress completes the reauthorization of the Elementary and Secondary Education Act (ESEA), with which the IDEA will be aligned. The IDEA was last updated in 2004, and was scheduled to be reauthorized in 2011.

To give district leaders a better understanding of how to navigate combative situations, District Administration interviewed attorneys Weatherly and Steedman about their insights on the latest legal happenings in special education, the latest laws, and their advice.

What has led to the adversarial relationships between districts and parents? Why are lawyers often involved in some of the schooling of children with special needs?

Weatherly: Most of the time, I would say there’s been some sort of communication breakdown. Perhaps a parent doesn’t feel heard by an administrator at the school, or doesn’t get a returned phone call. Good PR is a top priority.

You have parents who are nervous already and concerned about their children because they have been identified as having a disability. And I think they feel sometimes that people aren’t listening to them, or the gains they’re seeing their child making aren’t sufficient, so they blame it on the school. Some parents expect more than the law requires of public schools in this area. But sometimes, the school has not provided the services that were committed on the IEP, or hasn’t done appropriate evaluations to determine what the child truly needs educationally.

Steedman: It’s pithy to say these problems develop because there’s a disagreement. The question is, why is there a disagreement? The main reason why has to do with limited resources. IDEA was passed in 1975, under a different name, and at that time Congress promised the states that it would fund the additional cost of administering the IDEA at 40 percent of what the cost would be. Congress has never come even close to funding it at that level, so it’s fallen on the states.

There is a conflict between having a limited budget and the law, which says you cannot use a lack of resources as a reason to deny services to a child with disabilities. If a school doesn’t have the resources to provide those services, their only recourse is to tell parents their child doesn’t need them, even if they believe the child does. They’re not allowed by law to say to a parent, “We agree your child needs these services, but we don’t have the resources to be able to find them.”

What’s changing in the legal landscape that district leaders should know about?

Weatherly: Right now, probably the most important issue is bullying, when the victim is a child with a disability. If school administrators don’t respond to known bullying against a child with a disability and the bullying is based on the disability—for instance, name calling based on an observable disability, or if kids know a child is in special ed and they prey on that child because of that—that can rise to the level of disability harassment that districts can be held liable for.

There are numerous federal court cases that are presently pending and awaiting trial. Last December, there was a bullying case decided in Tennessee brought under state negligence laws where a student with Asperger’s was left in a classroom without supervision with a bully. There was an altercation and the disabled student lost use of an eye when the bully threw a book at him. The jury awarded $300,000 against the district. I have not yet seen any federal court cases where damages have been awarded.

Steedman: The big thing is the reauthorization of the ESEA. It’s being debated in Congress, and there are several bills now pending. The Student Success Act that the House passed in July is the first bill that’s come out of either house in years. Parents are very much against this bill, because although it’s not a special education bill, it has implications for special education because it basically says that kids with disabilities will not be considered when looking at state standards.

We’ve also seen a tremendous increase in the number of children who are being identified on the autism spectrum, and school districts throughout the country are adjusting their programs and resources to accommodate the needs of these children. We know that kids on the autism spectrum often require lots of services and have lots of intensive needs, so that’s going to strain resources even further. The research supports a methodology of applied behavioral analysis, but it’s a very time-intensive process.

What are the best practices for avoiding adversarial relationships between districts and parents?

Weatherly: The number one thing is good PR, and responding to parents. I also support use of the facilitated IEP approach. I’m involved with a group that trains folks in this process, and I think it lessens legal noncompliance and helps with a lot of the mistakes that I see educators make in the pivotal IEP meeting. It includes using an agenda, so the meeting is organized. A facilitator can help district leaders use good listening skills and good communication and PR skills, considering things like body language, during these meetings. You can tell a parent you’re interested, but if you have your arms folded in front of you, it sends a different message. Even the way the district sets up the room is important, in terms of making it comfortable, and making it such that it doesn’t look like it’s “us against them.”

I see administrators with fewer legal issues when they are very involved with the special education process, rather than just leaving it to the special education folks. The philosophy of the school leader needs to be that all children are school children. Those leaders do much better with avoiding litigation because they generally have better relationships with parents. It’s all about that relationship really, and returning those parents’ phone calls. I’ve had litigation start because one parent didn’t get a returned phone call. It’s also supporting the special education staff, and realizing that staff is just as important as everyone else.

Steedman: School district leaders do themselves a disservice when they are not honest with parents. Administrators are sending the message to the state that the budget is perfectly fine, and they don’t need more money to provide services. If they come right out and say to parents, “Your child needs more speech language therapy, but our speech language pathologist’s caseload is full, and we don’t have the budget to hire anybody else,” I think at least half, if not more, of the parents would say, “OK, what can we do together to make sure my child is getting the services he or she needs?”

Another thing that helps to avoid litigation is for schools to have in-house counsel rather than outside attorneys. Outside counsel has no incentive to settle cases or try to work them through, because they make more money litigating the cases. There is one school district in Maryland that I deal with all the time and I’ve never had a hearing with, because they have in-house counsel that is more interested in trying to resolve the case than go to a hearing, because there is no benefit to him personally or the district to litigating a case like that. Having in-house counsel will save school systems money, and will keep the adversarial relationships to a minimum.

Independent educational evaluations (IEEs) from an outside group also help avoid litigation. If the independent evaluation says the child needs the same services the school is saying, parents are willing to accept it much more quickly. And if it comes back and says the child needs more than what the school is recommending, it helps the school system regroup and rethink about providing the services. Most schools are willing to fund an IEE, to perhaps avoid the litigation that would go along with fighting over the IEP.

What are the tactics that lead to win-win situations? What can district leaders and parents do to find common ground?

Weatherly: Mediation can be effective. IDEA has in it, as of 2004, a procedure called the ‘resolution meeting’ that is required. If a parent should get an attorney and formally file for due process, the parties are required to go to a resolution session, unless they both waive it in writing. It’s informal, and attorneys can go but are not encouraged to attend.

The purpose in the law is that the parents are to tell their side of the story, and give the district an opportunity to resolve their concerns. It has to be convened within 15 days of the parent’s request for due process. I generally tell districts never to waive that process, to at least have the special education director and other relevant team members sit down with the parents to try to clarify what their concerns are and what would resolve those concerns.

Steedman: At the IEP level, parents are uncomfortable when schools have a lot of people waiting for them when they come into the meeting, who already have been talking about the case. I get annoyed when parents are referred to as “mom and dad” in meetings—they have names. Parents should also be sitting at the same table as the school team. It’s little things like this that have an impact on how parents feel in these meetings. They are not comfortable meetings, so if the school system tries to make parents feel more comfortable, it helps a lot.

If the parents or school leaders are feeling like things are getting tense, some states have facilitated IEP meetings, done with an independent party.

It levels the playing ground for parents, so they can feel like the school’s not the only one in charge—you have a facilitator who’s going to help you work more collegially. If that doesn’t happen, mediation is a good way to go. Mediation means you’re willing to go in and compromise, and parents and schools need to be willing to do that. If we’re going to agree to mediation, it’s because we’re saying we’re willing to consider other alternatives than what we were saying at the IEP meeting.

What is the most important thing for school administrators to consider when managing relationships with parents of special education students?

Weatherly: Invite parents to feel free to express their concerns and designate a “go to” person for them. Listen to their concerns and act upon them. Make them feel as if the school really cares about them and their child.

Steedman: Administrators need to walk a mile in the parents’ shoes. It’s very hard to do, but it had a lot of meaning to me one time when I sat in a meeting with a parent in a mediation with a school administrator. The father looked across the table and said, “I wish you could walk a mile in my shoes.”

And the administrator looked at the father, and it changed everything. For the first time he was able to take himself out of his professional position and really look at it from the father’s perspective, and started asking the father more questions, about what it felt like, what the student’s day was like in and out of school, and what could the school do to help. After that the parents and the administrator were able to work together in a really collegial way.

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